1 

14-3213-cr(L) 

United States v. Christopher Finazzo, Douglas Dey 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held 

at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 7th day of March, two thousand seventeen. 

PRESENT: ROBERT D. SACK, 

 DENNY CHIN, 

CHRISTOPHER F. DRONEY, 

Circuit Judges. 

 

---------------------------------------------------------------------- 

UNITED STATES OF AMERICA, 

Appellee, 

v. Nos. 14-3213-cr(L) 

 14-3330-cr(Con) 

 

CHRISTOPHER FINAZZO, DOUGLAS DEY, 

 Defendants-Appellants.

---------------------------------------------------------------------- 

 FOR DEFENDANTS-APPELLANTS: ROBERT J.A. ZITO (Alan S. Lewis, Karen 

E. Meara, Madelyn K. White, on the 

brief), Carter Ledyard & Milburn LLP, 

New York, New York, for Christopher 

Finazzo. 

T. BARRY KINGHAM (Jacques 

Semmelman, Rachel L. Cohn, on the 

brief), Curtis, Mallet-Prevost, Colt & 

Mosle LLP, New York, New York, for

Douglas Dey. 
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FOR APPELLEE: WINSTON M. PAES, Assistant United 

States Attorney (Amy Busa, Claire S. 

Kedeshian, Assistant United States 

Attorneys, on the brief), for Loretta E. 

Lynch, United States Attorney for the 

Eastern District of New York, Brooklyn, 

New York. 

Appeal from the August 27, 2014 judgments of the United States District Court for 

the Eastern District of New York (Mauskopf, J.), as amended on November 12, 2014. 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgments of the district court are AFFIRMED in part and 

VACATED and REMANDED in part. 

Defendant Christopher Finazzo appeals his conviction and sentence of eight years’ 

imprisonment and three years’ supervised release. His sentence was imposed following a 

jury verdict of guilty on: (1) one count of conspiracy to commit mail and wire fraud and 

to violate the Travel Act—in violation of 18 U.S.C. § 371; (2) fourteen counts of mail 

fraud—in violation of 18 U.S.C. § 1341; and (3) one count of wire fraud—in violation of 

18 U.S.C. § 1343. In addition, Finazzo appeals the $25,790,822.94 forfeiture order, and 

Finazzo and Defendant Douglas Dey both appeal the district court’s $13,690,822.94 

restitution order imposed jointly and severally against them. 

The charges arose from an alleged scheme in which Finazzo—a merchandising 

executive at Aéropostale, Inc.1

—caused Aéropostale to use South Bay Apparel Inc. 

(“South Bay”)—a company controlled by Dey—as a supplier of certain apparel for retail 

sale by Aéropostale, in exchange for secret payments to Finazzo of portions of South 

Bay’s profits. On appeal, Finazzo argues that: (1) the district court’s jury instructions 

regarding the “right to control” Aéropostale’s property under the mail and wire fraud 

statutes were improper, (2) the district court improperly gave the jury a “no-ultimateharm” instruction, (3) there was insufficient evidence to support Finazzo’s conviction 

under the “right to control” theory, (4) the district court erred in excluding expert 

testimony offered by Finazzo, (5) the district court procedurally erred in calculating 

Aéropostale’s losses under the Sentencing Guidelines, (6) Finazzo’s eight-year prison 

sentence was substantively unreasonable, (7) the district court erred in instructing the jury 

that forfeitability of proceeds and property need only be proven by a preponderance of 

the evidence, (8) the jury’s forfeiture verdict was unconstitutionally excessive, (9) the 

district court erred in concluding that Finazzo had waived his attorney-client privilege 

regarding an email that triggered Aéropostale’s investigation of the alleged fraud, and 

 

1

 Aéropostale is a retailer of casual apparel and accessories primarily targeting teenagers. 
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(10) the district court erred in its restitution calculation. Dey also challenges the district 

court’s restitution calculation. 

We address points (1), (3), and (10) in an opinion simultaneously issued with this 

order. The opinion affirms the district court on points (1) and (3), and vacates and 

remands to the district court on point (10) for a new restitution calculation. In this 

summary order, we affirm the district court on the remaining issues. We assume the 

parties’ familiarity with the underlying facts and procedural history of this case. 

A. “No Ultimate Harm” Instruction 

In its jury instructions regarding the substantive mail-fraud counts (Counts 2–15), 

the district court explained that good faith of the defendant was a complete defense to a 

mail-fraud charge. However, the court added that: 

[I]f the defendant participated in the scheme to defraud, then a belief by the 

defendant, if such belief existed, that ultimately everything would work out 

so that no one would lose any money does not require you to find that the 

defendant acted in good faith. If the defendant participated in the scheme 

for the purpose of causing some financial or property loss to another, then 

no amount of honest belief on the part of the defendant that the scheme 

would, for example, ultimately make a profit, will excuse fraudulent actions 

or false representations by him. 

As a practical matter, then, in order to sustain the charges against the 

defendant, the government must prove beyond a reasonable doubt that the 

defendant knew that his conduct as a participant in the scheme was 

calculated to deceive and nonetheless, he participated in the alleged 

fraudulent scheme for the purpose of causing some loss to another. 

Finazzo App’x at 100. Finazzo argues that there was no evidentiary basis for this “no 

ultimate harm” instruction and that it therefore improperly eliminated the Government’s 

burden to prove he intended to defraud Aéropostale. We review the propriety of jury 

instructions de novo. United States v. Botti, 711 F.3d 299, 307 (2d Cir. 2013). 

 This Court has acknowledged that “no ultimate harm” instructions may “appear[] 

to be at odds with the requirement that a defendant must have intended to harm his victim 

in order to be guilty of mail fraud.” United States v. Rossomando, 144 F.3d 197, 201 (2d 

Cir. 1998). However, we have stated that the “key word” in such instructions is 

“ultimately,” and that “the point that [such instructions] seek[] to convey is that where 

some immediate loss to the victim is contemplated by a defendant, the fact that the 

defendant believes . . . that he will ‘ultimately’ be able to work things out so that the 

victim suffers no loss is no excuse for the real and immediate loss contemplated to result 
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from defendant’s fraudulent conduct.” Id. As such, in cases where there is “a sufficient 

predicate in the record” for the instruction, “the risk that a jury might be misled into 

believing that no harm need be intended is reduced,” and the instruction is permissible. 

Id. at 202. 

 We find that there was a sufficient factual predicate for the no-ultimate-harm 

instruction. While the defense’s theory at trial largely focused on the claim that Finazzo 

did not intend Aéropostale to ever lose money, see id. (finding a no-ultimate-harm 

instruction improper where defense’s theory at trial had been that the defendant thought 

the victim was “never going to lose money”), the defense also emphasized that 

Aéropostale was ultimately quite successful over the time period of Finazzo’s alleged 

fraud. We find this to be a sufficient factual predicate for the no-ultimate-harm 

instruction, especially where the district court clarified immediately thereafter that the 

Government was still required to establish that Finazzo engaged in the alleged fraudulent 

scheme “for the purpose of causing some loss to another.” Finazzo App’x at 100. Indeed, 

we upheld a nearly identical clarification of a no-ultimate harm instruction in United 

States v. Berkovich, 168 F.3d 64 (2d Cir. 1999), because it “clearly informed the jury that 

they could not convict appellant unless he intended to cause loss to someone,” which 

“greatly reduced” the possibility of jury confusion, id. at 67. 

B. Expert Testimony 

Finazzo argues that the district court erroneously excluded expert testimony by 

Sam Rosenfarb, a partner at a forensic accounting and valuation firm. Rosenfarb was 

offered to testify that Aéropostale “was not financially damaged as a result of the 

transactions with South Bay,” and that the transactions between Aéropostale and South 

Bay were “fair,” “bona[]fide,” and that “they were a good deal for Aéropostale.” Finazzo 

App’x at 128. The district court precluded Rosenfarb’s testimony following a Daubert

hearing. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). We review a 

district court’s decision to exclude expert testimony under Daubert for abuse of 

discretion. Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 264 (2d Cir. 2002). 

A decision is not an abuse of discretion unless it is “manifestly erroneous.” Id. at 265 

(quoting McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir. 1995)) (internal 

quotation marks omitted). 

Federal Rule of Evidence 702 permits expert testimony if: “(a) the expert’s 

scientific, technical, or other specialized knowledge will help the trier of fact to 

understand the evidence or to determine a fact in issue; (b) the testimony is based on 

sufficient facts or data; (c) the testimony is the product of reliable principles and 

methods; and (d) the expert has reliably applied the principles and methods to the facts of 

the case.” Fed. R. Evid. 702. 
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The district court did not abuse its discretion in precluding Rosenfarb’s expert 

testimony. As an initial matter, the district court determined that Rosenfarb’s proffered 

opinion that Aéropostale “was not financially damaged” was not raised in “any . . . 

disclosures” and “there clearly was no notice to the government as to that” opinion. 

Finazzo App’x at 222. Finazzo does not challenge that finding on appeal, let alone argue 

that it was an abuse of discretion. Moreover, the court correctly found that Rosenfarb’s 

opinion that the transactions between Aéropostale and South Bay were bona fide, rather 

than fake, was irrelevant, since it was undisputed that Aéropostale received goods it 

bought from South Bay. See Finazzo App’x at 128 (Rosenfarb stating that “Bona[]fide 

transactions means they were real transactions, they weren’t bogus. There actually were 

goods that were delivered and received and paid for.”). 

The district court also properly precluded Rosenfarb’s opinion that the transactions 

were a “good deal” for Aéropostale. When asked at the Daubert hearing how he defined 

“good deal,” Rosenfarb responded: “It’s an English concept. It’s just English words.” 

Finazzo App’x at 184. On cross-examination, the Government followed up by asking, 

“So you just, hey, it’s a good deal?” Id. Rosenfarb responded, “That’s fair.” Id. The 

district court correctly found that Rosenfarb’s opinion was inadmissible because it 

addressed lay matters that the jury was capable of understanding and deciding without the 

expert’s help. See Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 708 (2d Cir. 

1989) (“For an expert’s testimony to be admissible . . . it must be directed to matters 

within the witness’ scientific, technical, or specialized knowledge and not to lay matters 

which a jury is capable of understanding and deciding without the expert’s help.”). 

Lastly, the district court did not abuse its discretion in precluding Rosenfarb’s 

testimony that the transactions were “fair.” Rosenfarb’s testimony was based merely on a 

comparison of South Bay’s gross margins to that of its “peers.” See Finazzo App’x at 

169. However, inter alia, the district court correctly pointed out that: (1) Rosenfarb did 

not explain why he considered these entities “peers” of South Bay, (2) the purported peer 

groups did not appear to actually be similar, since some of the businesses were in 

different industries, (3) Rosenfarb compared South Bay’s and Aéropostale’s gross 

margins, even though he conceded the companies were not similarly situated, and (4) 

Rosenfarb did not testify that those in his field rely on the data he used for peer-group 

comparisons. Under such circumstances, the district court was within its discretion to 

preclude Rosenfarb’s testimony as unreliable. See Amorgianos, 303 F.3d at 266 (“A court 

may conclude that there is simply too great an analytical gap between the data [relied on 

by an expert] and the opinion proffered. Thus, when an expert opinion is based on data, a 

methodology, or studies that are simply inadequate to support the conclusions reached, 

Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony.” 

(citation omitted)). 
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C. Procedural Reasonableness of Sentence 

Finazzo challenges the district court’s sentence as procedurally unreasonable, 

arguing that the district court erred in calculating an actual loss to Aéropostale of over 

$20,000,000.00—which increased Finazzo’s offense level by 22 under U.S.S.G. 

§ 2B1.1(b). This Court reviews a sentence for procedural reasonableness under a 

deferential abuse-of-discretion standard. United States v. Jesurum, 819 F.3d 667, 670 (2d 

Cir. 2016). We review the district court’s interpretation of the Sentencing Guidelines de 

novo and its findings of fact for clear error. United States v. Rubenstein, 403 F.3d 93, 99 

(2d Cir. 2005). 

 Finazzo contends that Counts 2 through 16—on which Finazzo was convicted of 

mail and wire fraud for depriving Aéropostale of the “right to control” its assets—cannot 

support any loss calculation because the right to control assets is an “intangible interest” 

whose diminution cannot be measured in dollars. Finazzo Br. at 83–85. This argument 

has no merit. The Sentencing Guidelines define “[a]ctual loss” as “the reasonably 

foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1 cmt. 

n.3(A)(i). “Pecuniary harm” is defined as “harm that is monetary or that otherwise is 

readily measurable in money.” Id. cmt. n.3(A)(iii). Finazzo cites no authority for the 

proposition that deprivation of the right to control assets cannot create loss under the 

Guidelines. Indeed, this Court has expressly contemplated that deprivation of the right to 

control could lead to tangible, pecuniary harm. See United States v. Mittelstaedt, 31 F.3d 

1208, 1217 (2d Cir. 1994) (stating that deprivation of the right to control “does not give 

rise to mail fraud liability unless the omission can or does result in some tangible harm” 

and that the government had to establish that the deprivation “caused (or was intended to 

cause) actual harm to the [victim] of a pecuniary nature or that the [victim] could have 

negotiated a better deal for itself if it had not been deceived”). We have subsequently 

upheld loss calculations where the defendant was convicted on a right-to-control theory. 

See, e.g., United States v. Viloski, 557 F. App’x 28, 35–36 (2d Cir. 2014) (summary 

order) (affirming the district court’s determination that the defendant’s kickback scheme 

created a loss, where the defendant was convicted on a right-to-control theory). We 

therefore reject Finazzo’s argument on this point. 

 Finazzo further argues that the district court erred in attributing loss to the 

conspiracy. He claims that the district court “restricted its analysis to whether Mr. 

Finazzo caused a loss [under the conspiracy count (Count 1)].” Finazzo Br. at 85–86. He 

then contends that the conspiracy could not have caused loss to Aéropostale because the 

jury did not find him guilty of intent to deprive Aéropostale of money under the 

substantive mail and wire fraud counts (Counts 2–16).2

 On this basis, he claims that the 

 

2

 Count 1 charged Finazzo with conspiracy to commit mail fraud, wire fraud, and to violate the Travel Act. In its 

special verdict sheet, the jury found Finazzo guilty of conspiracy to commit mail fraud “[o]n the basis of intent to 

deprive Aéropostale of money” and “[o]n the basis of Aéropostale’s right to control use of its assets.” Dist. Ct. Dkt. 

No. 260, at 2. It found Finazzo guilty of conspiracy to commit wire fraud on the basis of Aéropostale’s right to 
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district court’s entire loss calculation was improper. We also reject this argument. To 

begin with, Finazzo incorrectly asserts that the district court restricted its analysis for its 

Guidelines calculation to the loss caused by the conspiracy offense. The district court 

stated that it was considering only the conspiracy conviction “[f]or purposes of fixing 

restitution,” to avoid determining whether convictions based on a right-to-control theory 

constituted offenses against property within the meaning of the Mandatory Victims 

Restitution Act, 18 U.S.C. § 3663A. Dey App’x at 2530. The court did not so restrict its 

analysis with regards to its loss calculation. Finazzo also incorrectly asserts that the jury’s 

not-guilty verdict on Counts 2–16 for intent to deprive Aéropostale of money precludes a 

loss finding for the conspiracy conviction. He argues that a conspiracy can support a loss 

finding “only if specific acts are taken to further the conspiracy that inflict a loss.” 

Finazzo Br. at 86. However, the jury’s verdict on Counts 2–16 does not compel the 

finding that no overt act taken in furtherance of the conspiracy inflicted a loss. First, as 

explained above, the jury found Finazzo guilty on Counts 2–16 on a right-to-control 

theory, and Finazzo has failed to demonstrate that deprivation of the right to control 

assets cannot inflict a loss. Second, the alleged overt acts under the conspiracy count 

(Count 1) include specific acts beyond the scope of Counts 2–16. In fact, the overt acts 

spanned a ten-year time period (1996–2006), while the substantive counts only involved 

transactions made in 2005 and 2006. Third, the jury concluded that Finazzo was guilty of 

conspiracy to commit mail fraud on the basis of both his intent to deprive Aéropostale of 

money as well as the loss of the right to control its assets, and the district court made the 

same conclusion.3

 Thus, we reject Finazzo’s argument that the district court could not 

properly attribute loss to the conspiracy count. 

 Finazzo also argues that his sentence is procedurally unreasonable because “the 

District Court restricted its calculation of actual losses to what it thought it could attribute 

to the conspiracy” and then used that loss calculation to calculate a Guidelines range 

above the statutory maximum for the conspiracy offense. Finazzo Br. at 93–95. This 

argument is also without merit. As noted above, the district court restricted its loss 

calculation to the conspiracy count only for restitution purposes, not for its Guidelines 

calculation as to the recommended period of incarceration. This fact vitiates Finazzo’s 

argument, since he fails to demonstrate that the loss calculation was based solely on the 

conspiracy count. Furthermore, even if the district court had only considered the loss 

 control use of its assets, but not on the basis of intent to deprive Aéropostale of money. The jury also found Finazzo 

guilty of conspiracy to violate the Travel Act. Counts 2 through 15 charged Finazzo with specific substantive mail 

fraud counts. On each of those counts, the jury found Finazzo guilty on the basis of Aéropostale’s right to control 

use of its assets, but not on the basis of intent to deprive Aéropostale of money. Count 16 charged Finazzo with 

substantive wire fraud. The jury found Finazzo guilty on the basis of Aéropostale’s right to control use of its assets, 

but not on the basis of intent to deprive Aéropostale of money. 

3

 Moreover, on Counts 2–16, the jury declined to find Finazzo guilty on the basis of intent to deprive Aéropostale of 

money. Finazzo conflates this with a finding that he did not inflict a loss. They are, however, separate questions. 

Furthermore, even if the jury had found that Finazzo did not inflict a loss, “district courts may find facts relevant to 

sentencing . . . by a preponderance of the evidence and in so doing may take into account acquitted conduct when 

sentencing defendants.” United States v. Johnson, 507 F.3d 793, 797 (2d Cir. 2007). 
8 

caused by the conspiracy, Finazzo provides no support for his claim. The district court 

grouped Finazzo’s offenses together under U.S.S.G. § 3D1.2(b), and Finazzo does not 

challenge that grouping on appeal. Under § 3D1.3(a), the offense level applicable to the 

group was “the highest offense level of the counts in the Group.” Finazzo cites no 

authority for the proposition that the Guidelines range for a group must be constrained by 

the statutory maximum for the count that provides the group’s offense level under § 

3D1.3. 

Finazzo also claims that the district court’s explanation of its loss calculation was 

insufficient. He states that the district court “provided no explanation for how it leapt 

from the government’s so-called ‘examples’ of loss to its conclusion that the precise 

amount of Mr. Finazzo’s gain was a measure of loss.” Finazzo Br. at 87. Contrary to 

Finazzo’s assertions, the district court’s explanation of its loss calculation does not 

constitute an abuse of discretion. In explaining its calculation, the district court adopted 

the detailed factual recitation in the Government’s Sentencing Memorandum. Inter alia, 

that memorandum noted that Julian Geiger—Aéropostale’s Chief Executive Officer—

testified that Finazzo profiting from transactions with vendors “directly diminished 

Aéropostale’s ability to maximize its profits because monies were going elsewhere that 

could have gone to the company.” Dist. Ct. Dkt. No. 334, at 13 (quoting Dey App’x at 

1418) (internal quotation marks omitted). It is undisputed that Finazzo received 

$25,790,822.94 from his association with South Bay. The district court therefore 

explained that it found an actual loss to Aéropostale in that amount because 

Aéropostale’s loss could “reasonably be measured as the value of the kickbacks for 

Guidelines purposes.” Dey App’x at 2569. We conclude that the district court did not 

abuse its discretion in providing this explanation for using the amount of Finazzo’s gain 

as a measure of loss for Guidelines purposes. 

 Relatedly, Finazzo appears to argue that the evidence did not support the district 

court’s conclusion that the amount of kickbacks was a reasonable measure of loss. The 

district court’s factual findings relating to loss must be established by a preponderance of 

the evidence. United States v. Uddin, 551 F.3d 176, 180 (2d Cir. 2009). However, “the 

court need not establish the loss with precision but rather need only make a reasonable 

estimate of the loss, given the available information.” Id. (internal quotation marks 

omitted). We review such factual findings on loss for clear error. Id. Even assuming that 

the evidence does not establish a direct correlation between the amount of kickbacks 

Finazzo received and Aéropostale’s loss, such a correlation is not required for Guidelines 

purposes. We are satisfied that the district court did not clearly err in finding that the 

amount of kickbacks was a reasonable estimate of the loss, given the evidence. At trial, 

Geiger testified that “any profits that [Finazzo] would have gotten, in my mind, would 

[otherwise] have accrued to the company[,] increasing its profitability.” Dey App’x at 

1423. Similarly, Geiger testified that any profits Finazzo received from South Bay 

“would have been at the direct cost to Aéropostale.” Id. at 1422. Edward Slezak—

Aéropostale’s General Counsel—stated that he believed “every penny that [Finazzo] ever 
9 

got from South Bay should have been ours.” Id. at 858. While Finazzo argues that South 

Bay’s prices were fair, he has not pointed to evidence that shows any purpose for the 

kickbacks other than inflation of prices. We therefore conclude that the district court’s 

loss calculation was a reasonable estimate, given the available information.4

 

D. Substantive Reasonableness of Sentence 

Finazzo also challenges the substantive reasonableness of his sentence. The 

district court imposed a 96-month prison sentence after calculating a 108–135 month 

Guideline range. We review substantive reasonableness challenges under an abuse-ofdiscretion standard. United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014). This 

review is “particularly deferential.” Id. (quoting United States v. Broxmeyer, 699 F.3d 

265, 289 (2d Cir. 2012)) (internal quotation marks omitted). Thus, we will only set aside 

a district court’s substantive determination “in exceptional cases where the trial court’s 

decision cannot be located within the range of permissible decisions.” United States v. 

McIntosh, 753 F.3d 388, 394 (2d Cir. 2014) (per curiam) (internal quotation marks 

omitted). 

Finazzo rests his substantive-reasonableness challenge on the argument that the 

district court’s loss calculation was improper. Having already determined that the district 

court’s § 2B1.1 loss calculation was not improper, we have no difficulty concluding that 

Finazzo’s below-guidelines sentence was substantively reasonable. See United States v. 

Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (per curiam) (“[I]n the overwhelming 

majority of cases, a Guidelines sentence will fall comfortably within the broad range of 

sentences that would be reasonable in the particular circumstances. It is therefore difficult 

to find that a below-Guidelines sentence is unreasonable.” (citation and internal quotation 

marks omitted)). 

E. Forfeiture Instruction 

In its forfeiture jury charge, the district court instructed the jury that “the 

Government need only establish the extent and forfeitability of the proceeds and a nexus 

between the specifically identified properties and the offenses by a preponderance of the 

evidence.” Finazzo App’x at 121. The jury subsequently returned a $25,790,822.94 

 

4

 In the opinion issued simultaneously with this order, we hold that, for restitution purposes, the kickback calculation 

was not a reasonable approximation of Aéropostale’s loss supported by a sound methodology. However, as 

explained in that opinion, in order to use defendant’s gain as a measure of the victim’s loss for the purposes of 

restitution, this Court requires that there be a “direct correlation” between gain and loss. United States v. Zangari, 

677 F.3d 86, 93 (2d Cir. 2012). This requirement constitutes a heightened standard that is not present in the 

Guidelines loss-calculation context. See United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 102 (2d Cir. 

2014) (“Though restitution and loss involve closely related calculations . . . the inquiries are not identical. . . . 

Because [a] defendant’s culpability will not always equal the victim’s injury, an amount-of-loss calculation for 

purposes of sentencing does not always equal such a calculation for restitution.” (internal quotation marks and 

citations omitted)). 
10 

forfeiture verdict against Finazzo. Finazzo argues that the district court erred in 

instructing the jury that a forfeiture finding need only be supported by a preponderance of 

the evidence, rather than beyond a reasonable doubt. Finazzo’s argument has no merit. 

Under this Court’s precedent, forfeiture determinations must be supported only by a 

preponderance of the evidence. United States v. Daugerdas, 837 F.3d 212, 231 (2d Cir. 

2016) (“For a criminal forfeiture order to pass muster, the government must establish, by 

a preponderance of the evidence, the requisite nexus between the property and the 

offense.” (internal quotation marks omitted)); United States v. Stevenson, 834 F.3d 80, 

85–86 & n.3 (2d Cir. 2016) (“[T]he amount of a forfeiture order must be supported only 

by a preponderance of the evidence.” (internal quotation marks omitted)). Therefore, 

Finazzo’s challenge fails. 

F. Forfeiture Constitutionality 

Finazzo also challenges the district court’s determination that the jury’s forfeiture 

award was not unconstitutionally excessive. “We review a district court’s legal 

determinations regarding forfeiture de novo and its underlying factual findings for clear 

error.” United States v. George, 779 F.3d 113, 122 (2d Cir. 2015). “A forfeiture is 

unconstitutionally excessive ‘if it is grossly disproportional to the gravity of a defendant’s 

offense.’” United States v. Viloski, 814 F.3d 104, 110 (2d Cir. 2016) (quoting United 

States v. Bajakajian, 524 U.S. 321, 334 (1998)). This Court considers the following 

factors—known as the Bajakajian factors—in determining whether a forfeiture is grossly 

disproportional: (1) the essence of the crime and its relation to other criminal activity; (2) 

whether the defendant fits into the class of persons for whom the statute was principally 

designed; (3) the maximum sentence and fine that could have been imposed; and (4) the 

nature of the harm caused by the defendant’s conduct. Id. The burden rests on the 

defendant to show the unconstitutionality of a forfeiture order. United States v. Castello, 

611 F.3d 116, 120 (2d Cir. 2010). 

On appeal, Finazzo challenges the district court’s evaluation of the third factor, 

arguing that the court’s purportedly incorrect Guideline calculation “fatally undermined” 

its consideration of that factor. Finazzo Br. at 95; see Viloski, 814 F.3d at 114 (stating 

that, in evaluating the third Bajakajian factor, this Court “look[s] especially to the 

applicable Guidelines penalties”). Once again, having found no error in the district 

court’s Guidelines calculation, we reject Finazzo’s challenge. 

G. Attorney-Client Privilege 

Finazzo contends that he is entitled to a new trial because “the government 

knowingly used misappropriated attorney-client privileged information” when it used an 

email Finazzo’s attorney sent to him at his Aéropostale email account regarding 

Finazzo’s will, which listed his assets, including his interest in several South Bay entities. 

Finazzo Br. at 100. “The attorney-client privilege protects communications (1) between a 
11 

client and his or her attorney (2) that are intended to be, and in fact were, kept 

confidential (3) for the purpose of obtaining or providing legal advice.” United States v. 

Mejia, 655 F.3d 126, 132 (2d Cir. 2011). “Public, even extrajudicial, disclosures 

constitute a waiver of the privilege for the communications or portions of 

communications disclosed.” United States v. Jacobs, 117 F.3d 82, 91 (2d Cir. 1997) 

(emphasis and internal quotation marks omitted), abrogated on other grounds by 

Loughrin v. United States, 134 S. Ct. 2384 (2014). Thus, “the question of whether the 

privilege applies . . . involve[s] a determination of whether the claimant asserting the 

privilege treated the communications in question in such a careless manner as to negate 

her or his intent to keep them confidential.” Mejia, 655 F.3d at 132–33 (alterations and 

internal quotation marks omitted); see also United States v. DeFonte, 441 F.3d 92, 94–95 

(2d Cir. 2006) (per curiam) (noting that attorney-client privilege would be waived if the 

claimant treated documents at issue “in such a careless manner as to negate her intent to 

keep them confidential”). The burden of establishing the existence of an attorney-client 

privilege rests with the party asserting it. In re Grand Jury Proceedings, 219 F.3d 175, 

182 (2d Cir. 2000). “It is firmly established in this circuit that we review a district court’s 

finding of waiver of the attorney-client . . . privilege[] for abuse of discretion.” Id.; see 

also Mejia, 655 F.3d at 131–32 (applying abuse of discretion review to a district court’s 

finding of waiver of attorney-client privilege). 

The district court did not abuse its discretion in finding that Finazzo waived the 

privilege as to the email. Although the record is unclear regarding whether Aéropostale’s 

2004 or 2007 policy governing employees’ computer usage was in place in August 

2006—the time of Finazzo’s communication with his attorney Angela Siegel—both 

policies specifically state that employees “should have no expectation of privacy when 

using Company Systems.” Gov’t App’x at 208; Dist. Ct. Dkt. No. 103-4, at 24. In 

addition, both policies notify employees that Aéropostale may “monitor[], access[], 

delete[] or disclose[]” all use of Company Systems without permission. Id. Each policy 

defines “Company Systems” to include “internal and external email.” Gov’t App’x at 

207; Dist. Ct. Dkt. No. 103-4, at 23. In both 2004 and 2005, Finazzo signed forms 

acknowledging that he had read the Employee Handbook containing these policies. 

Furthermore, between 2002 and 2006, Finazzo signed quarterly Representation Letters 

stating that he was “familiar with the contents of the Employee Handbook.” Gov’t App’x 

at 246–69. 

Despite Finazzo’s familiarity with Aéropostale’s computer policies, he used his 

Aéropostale email address to send and receive emails with his attorney. Specifically, he 

sent and received emails regarding his will on his Aéropostale email address on June 7, 

2006. Notably, when Siegel sent the August 24 email for which Finazzo asserts attorneyclient privilege, Finazzo responded from his company email, instructing Siegel to correct 

the value of one of the assets listed in the email attachment. Other than a self-serving 

affidavit, there is no evidence that Finazzo made any effort to preserve the confidentiality 

of these communications. See In re Horowitz, 482 F.2d 72, 80–82 (2d Cir. 1973) (stating 
12 

that, in a case where privileged information was transferred in a manner that gave another 

party access to it, “affirmative action to preserve confidentiality” was necessary to 

preserve the privilege). In these circumstances,5

 it was not an abuse of discretion for the 

district court to rule that Finazzo had not carried his burden to show that he had kept the 

August 24 email confidential. Cf. Mejia, 655 F.3d at 133 (ruling that an inmate’s phone 

call was not protected by privilege because he was aware that his conversation was being 

recorded). 

* * * 

We have considered the Appellants’ remaining arguments and find them to be 

without merit. Accordingly, pursuant to this summary order and the opinion issued 

simultaneously with this order, we AFFIRM in part and VACATE and REMAND in 

part the judgments of the district court. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court 

 

5

 We note that measuring an individual’s expectation of privacy in his or her corporate email is a highly factdependent inquiry. We need not, and do not, therefore, enumerate any particular dispositive factors.